Decedent's Estates / Wills

Question 1

What does intestate succession explain?

Answer 1

Intestate succession explains how property is divided if a person dies without a will (or if the will is invalidated in part or in whole or does not make a total disposition).

Question 2

What are the two most common estate distribtion schemes if the decedent’s spouse and parents do not survive them?

Answer 2

If the decedent’s spouse and parents do not survive the testator, there are two available schemes to divide property among the decedent’s children: per capita at each generation (where all cousins will be treated alike) or per capita with representation (modern per stirpes) (where a child will simply take his parent’s share). (J2022, F2008, F2006, J1995)

Question 3

Per capita at each generation:

Answer 3

To decide who gets the shares of the estate, find the first generation where there are issue living. Give one share for each such living issue and one share for each person in that generation who predeceased the decedent but left issue surviving. Combine the shares belonging to the deceased persons and distribute them equally at the next generational level. (Cousins are treated alike.)

Question 4

Per capita with representation (modern per stirpes):

Answer 4

This is the same as PCAEG except instead of combining all shares and dividing them equally, simply pass each deceased person’s share on to her issues(s). (Cousins are not treated alike.)

Question 5

If there is no spouse and no children, how are heirs determined?

Answer 5

If there is no spouse and no children, there are two methods of determining heirship—the civil law consanguinity method and the parentelic method adopted by the UPC.

Under the consanguinity method, heirship is determined by degree of relationship: all persons of the same degree of relationship to the decedent take equal shares (so an uncle and a niece are in the third degree of consanguinity and would be heirs entitled to equal shares).

Under the parentelic method, descendants of the decedent’s parents take to the exclusion of descendants of the decedent’s grandparents (so a niece would be an heir but an uncle would not.) (J2020, J2009, J2004)

Question 6

Child:

Answer 6

a child for purposes of intestate succession includes adopted children, children born out of wedlock, and half-bloods (but not stepchildren!) (J2012, J2004, J1999, F1998)

Question 7

Advancements

Answer 7

This is an issue when the decedent dies without a will but gave a child a gift during her lifetime. The question is: Should the gift be deducted from what the child would inherit under the laws of intestate succession? (F2007, F2006, J2004, J1999)

Question 8

Advancements - Common Law:

Answer 8

A lifetime transfer to an heir was presumptively treated as a down payment on the heir’s intestate share and thus is taken into account when computing the heir’s intestate share. At common law, this only applied to a gift to a child (not, say, a gift to a sibling), but most states have broadened it to include any heir.

Question 9

Advancements - Majority Law:

Answer 9

most states today say that a lifetime transfer is presumed to be a gift and is ignored in computing the heir’s intestate share unless there is evidence to show that the decedent intended the gift to be an advancement.

Question 10

Ademption by satisfaction:

Answer 10

This doctrine applies when there is a will (unlike the
advancements doctrine). The Uniform Probate Code (UPC) states that a lifetime gift is not a prepayment unless: (1) the will says so, (2) the testator declares in a contemporaneous writing that the gift is to be deducted from the will, or (3) the devisee acknowledges in writing that the gift is in satisfaction of the bequest. (J2000)

Question 11

Will execution/validity general requirements:

Answer 11

Many state laws require that the will is in writing, signed by the testator, and witnessed by two witnesses. They also require that the testator is 18 or older and intend that the document is his will. Note: generally, any mark that is made with intent to adopt the will counts as a signature. (S2020, J2017, F2011, J2010, F2005, F2004, F2003, J1998)

Question 12

Holographic wills:

Answer 12

Holographic wills are unwitnessed wills.

Holographic wills are valid if signed and (according to the UPC and some states) if the material portions are in the testator’s handwriting. Holographic wills are recognized by about half the states. Mention this doctrine if you see an unwitnessed will on the MEE. (S2020, J2019, F2011, J2003, F2000, J1996)

Question 13

Dispensing power:

Answer 13

the UPC adopts the dispensing power under which a court can validate a will so long as there is clear and convincing evidence that the decedent intended the document to be her will.

Question 14

Incorporation by reference:

Answer 14

A writing that is not valid as a will may be incorporated by reference into a will if the will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty. This writing must exist at the time the will is executed.

(The UPC and some states recognize the right of a testator to dispose of tangible personal property by a signed memorandum, whether it is prepared before or after the execution of the will, even if it does not comply with the formalities of a will.) (F2021, S2020, J2017, F2012, F2011, J2006, F2003, J2001, J1996)

Question 15

Revocation by physical act:

Answer 15

Revocation by physical act (e.g., by execution of a new will or by some other physical act, such as cancellation or other writings on the will):

This must be done with the intent to revoke the will. The testator or someone acting at the testator’s direction and in his “conscious presence” may revoke the will. (F2015, F2005, J2003, J2001, J2000, F2000, J1998)

Question 16

Dependent relative revocation (DRR):

Answer 16

Under this doctrine, a first will isn’t revoked if a later will is found invalid. Essentially, if a testator revokes a will or bequest based on a mistaken assumption of law or fact, the revocation of the will is ineffective if it appears that the testator wouldn’t have revoked the bequest had the testator had accurate information. (F2021, S2020, J2010, F2005, J2001, J2000)

Question 17

Effect of divorce on will:

Answer 17

Divorce revokes gifts in favor of a spouse. Note: there actually needs to be a divorce (or annulment)—not just a filing of divorce. (J2013, F2001, F1996, J1995)

Question 18

When a gift fails because the beneficiary is not alive:

Answer 18

The general rule is that if a beneficiary does not
survive the testator, the gift will lapse or fail and fall into the residuary. However, all states have antilapse statutes (which keep gifts in the family). Under a typical antilapse statute, if a beneficiary dies before the testator and was both related by blood to the testator within a certain degree of relationship and had issue who survived, the gift to the deceased beneficiary is saved and the beneficiary’s issue will take in lieu of the beneficiary. (J2021, F2011, F2009, F2007, F1997)

Question 19

Slayer statute:

Answer 19

An individual who feloniously and intentionally kills the decedent, or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent, forfeits all benefits with respect to the decedent’s estate (including an intestate share, an elective share, an omitted spouse’s or child’s share, etc.).

Voluntary manslaughter is a form of a felonious and intentional killing. Note that if a beneficiary accidentally kills the decedent (even if it rises to involuntary manslaughter), the slayer rule does not bar a gift. Nor does it apply if the slayer murdered someone other than the decedent.

Note: when this is tested on the MEE, generally this doctrine does not bar a gift to the slayer (usually because the killing is not felonious and intentional!). (F2016, F2012, F2006, F1997)

Question 20

When a gift fails because the property no longer exists - ademption:

Answer 20

If specifically devised property (i.e., property that is specifically described in the will) is not in the testator’s estate when the testator dies, the bequest adeems—i.e., the gift fails. Under many statutes, if the testator replaced the property, or if there were insurance proceeds unpaid at death, then the beneficiary would receive that in place of the property. (F2012, F2009, F2005, F2003, F2002, J1995)

Question 21

Disclaimers:

Answer 21

Disclaimed property (property that a beneficiary does not want) will pass as if the person disclaiming had failed to survive the testator. An antilapse statute may apply; otherwise, the gift will fall into the residuary. (F2009, F2007, J2000, F1999)

Question 22

Abatement:

Answer 22

when the assets of an estate are insufficient to satisfy all the gifts made by someone’s will, then the gifts to the beneficiaries will be reduced (abated) in the following order: intestate property, residuary gifts, general gifts, and specific gifts (F2011, F2007, F2001, F1999)

Question 23

Key principle about when mental capacity or undue influence is tested:

Answer 23

Virtually every time that mental capacity or undue influence has been tested, the best answer is that the testator did have capacity and there was not undue influence present to invalidate the gift. However, remember that this is very fact-specific.

Question 24

Mental capacity:

Answer 24

A testator must have capacity to execute a will. The burden of proving that the testator lacks mental capacity rests on the contestant.

A testator meets this requirement if the testator knows (1) the nature and extent of his property, (2) the persons who are the natural objects of the testator’s bounty (i.e., family members), (3) the nature of the instrument that the testator is signing, and (4) the disposition that is being made in the will. (F2023, S2020, F2004, J2002, F1995)

Question 25

Undue influence:

Answer 25

Undue influence is present when the wrongdoer exerts such influence over the testator that it overcomes the testator’s free will and causes the testator to make a gift he would otherwise not have made.

The burden of establishing undue influence generally is on the will contestant who must show the following (mnemonic=SODA): (1) the testator was susceptible to undue influence, (2) the alleged influencer had the opportunity to exert undue influence, (3) the alleged influencer had a disposition to exert undue influence, and (4) the will appears to be a product of undue influence.

Most courts only invalidate portions that are infected by undue influence. (J2009, F2008, J1998, F1995)